Tuesday, December 29, 2009

According to the Old Testament, how long did Cain's brother live? As long as he was Able! Why do people commit crimes? From the time of Cain and Able, that question has plagued the world. And there are no easy answers! As a former state and federal prosecutor for over 26 years, I have seen countless reasons offered by defense lawyers for why their clients commit crimes. As a criminal defense lawyer, presently, I also see firsthand that each case is different.

Let's briefly consider some of the traditional theories and then we will consider some of my own theories about why people commit crimes! The classical and positivist theories are two of the traditional schools of thought concerning crime causation. According to the classical theory, a criminal exercises free will and makes a rational choice to commit a crime because it brings him or her pleasure. The positivist school maintains, on the other hand, that each criminal is influenced by social or economic conditions to commit crime. Another theory, (offered by a famous sociologist, Edwin Sutherland), called "differential association," maintains that each criminal learns bad behavior by associating with others who approve of it. This theory is often offered as an explanation of white collar crime.

But I have a couple of other theories about why folks commit crimes! I submit that some people are just plain greedy and others are just plain mean! (Of course, these theories do not apply to any of our clients)!

On a more serious note, I also maintain that the breakdown of the family unit is a leading cause of the rising crime rate in the United States. And no, I am not referring to the traditional "Ozzie and Harriet" family unit. You don't necessarily have to have a mother and father to avoid crime. But my theory is that each child does need somebody--whether it is a mother and father, or father, or mother, or grandmother--at least SOMEBODY, to ensure that that child is where they need to be and that they are doing what they are supposed to be doing at all times! Sadly, for too many kids today, there is no SOMEBODY there to watch over them and keep them on the straight and narrow path! And this may lead to criminal activity in some cases.

But another important point I want to make in this post is that, in my opinion, there are no simple, easy explanations of crime causation. Each crime and each criminal is unique. Therefore, for each crime, there is a unique set of reasons for why it occurred.

What do you think are the primary reasons for why people commit crimes?

Tuesday, December 22, 2009

"I couldn't wait to grow up, so I could get paid for voting." I will never forget those chilling words! They were spoken by an 18 year old young woman who I interviewed, (as a former federal prosecutor), while preparing for one of my biggest federal criminal cases: the Dodge County vote-buying case.

Dodge County is located in central Georgia, about an hour southeast of Macon, Georgia. It is a beautiful farming community and has some really good people who live there. But for decades, Dodge County had developed a bad reputation as a place where (some) candidates would pay voters for their votes. It had degenerated to the point where both sides in one contested election for Dodge County's sole county commissioner seat actually set up tables at opposite ends of the courthouse and supporters of the two candidates would openly bid for voters' votes as they entered the courthouse! Dodge County's sheriff was really smart. He had spread money out among vote-buyers in both county commission camps to buy votes for him! As a federal prosecutor, I was entrusted with the onerous task of prosecuting this vote-buying case and with trying to "clean up Dodge!"

Vote-buying is a federal crime, as long as a federal candidate is on the ballot. We prosecuted a total of 28 defendants. It was quite an ordeal! Fortunately, all were convicted, including the sheriff and both county commission candidates, along with a number of their supporters. The head of the Department of Justice Election Fraud Section has called this the largest election fraud case in United States history. I won my first D.O.J. Director's Award for this prosecution. But I certainly do not deserve all the credit. I was supported by an incredible team of agents from the G.B.I., the F.B.I., and the Georgia Secretary of State's Office. Without their fine work, we could not have been successful!

Awards and recognition are always nice. (Getting out of Dodge County with my skin was nice, too!) But I take greater satisfaction in believing we made a difference in how elections were conducted in this county. And I will always hope that no child in Dodge County will ever again associate growing up with getting paid to vote.

Saturday, December 19, 2009

According to Wikipedia, the United States has the greatest number of prisoners, per capita, of any nation in the world. However, news reports this week indicate that, next year, for perhaps the first time in 40 years, the number of prisoners in this country may actually drop. What is the reason for this abrupt change? Are judges getting soft? Has our criminal justice system developed new, innovative sentencing options which account for fewer defendants getting incarcerated? I'm afraid not!

Perhaps new sentencing alternatives are contributing a little bit to fewer incarcerations by sentencing judges. For instance, drug courts are now a popular, fairly new innovation which result in more probationary sentences. But drug courts still are not in vogue everywhere and do not account for the drop in prisoner numbers.

As I have promoted before in this blog, I wish states would also use diversion centers to house more of their non-violent offenders. Diversion centers cost a lot less than prisons and offer a more constructive alternative, especially for white collar crime offenders. By using diversion centers more, and by housing fewer inmates behind bars, states could save money, defendants could get jobs, and victims could get restitution. But diversion centers and other alternative sentencing ideas are not the reason for the drop in prisoner numbers.

The real reason for the slight expected drop in prisoner numbers is..........state budget problems. As states, such as California, are struggling to keep their budgetary heads above water, they are looking at other sentencing options, and even at widespread early prisoner releases, to help control costs.

So, while our states and our criminal justice system still generally "don't get it," when it comes to meaningful reform, the number of prisoners is actually about to go down. You decide whether or not that is a good thing. In my opinion, until true reform occurs, (with more drug courts and diversion centers), the statistics don't really mean a thing.

Wednesday, December 16, 2009

Don't you agree that the movie, "National Lampoon's Christmas Vacation," is a holiday classic? In my opinion, actor Randy Quaid, who plays Clark Griswald's (i.e. Chevy Chase's) country bumpkin brother-in-law in the movie, is a primary reason to watch this comedy! I always enjoy Randy Quaid's performances! In the "Christmas Vacation" movie, Quaid has a number of classic lines. For instance, when Clark Griswald fails to get his anticipated Christmas bonus check and instead receives from his boss a "jelly-of-the-month" subscription, Quaid kindly pats him on the back and observes, "Clark, that's the gift that keeps on giving!"

So, you might wonder, what does Randy Quaid or this holiday movie have to do with a blog about white collar crime?! Well, here's the connection! Unfortunately, as you may have read, arrest warrants have reportedly been issued by a California court for Quaid and his wife, based upon their failure to appear and answer fraud charges brought against them by a California inn-keeper. According to Quaid's attorney, the charges are all a mistake. The Quaids have reportedly already paid the inn-keeper in full. Here's hoping that the Quaids are correct and that their defense attorney can straighten out this mess!

But the point of this post is that, no matter whether or not criminal charges are valid, it is always critical that you communicate with your defense lawyer and that you ALWAYS appear in court, as directed! Otherwise, like the Quaids, you might receive a prison sentence and that, my friends, is a "gift that keeps on giving!"

Monday, December 14, 2009

Have you heard the news? The I.R.S. is coming to get you! Actually, the news reports concern a new I.R.S. unit which is designed to catch wealthy tax cheats who engage in income tax evasion by hiding unreported income in complex corporate entities around the world.

Not only is the Internal Revenue Service reportedly hiring hundreds of new employees for this new unit, but also is opening offices around the world in places such as Beijing, Panama City, and Sydney. We truly have become a global economy, so a global approach is necessary.

It will be interesting to see how much success this new I.R.S. unit will have in the next few years. This new approach by the I.R.S. to focus on high-rolling international tax cheats may be their best move in years! And as long as the I.R.S. is focused on the international high rollers, then maybe at least they won't be raiding the homes of ordinary citizens and seizing their children's piggy banks! (Of course, I am only teasing! As a former federal prosecutor, I know that none of my I.R.S. agent friends would ever do that!)

Wednesday, December 9, 2009

Have you seen the news reports today about the latest telephone scam which targets the elderly? In this latest scam, the con artists, who often target the elderly, (as we have discussed before in this blog), will call and pretend to be a family member who has had an emergency. The con artists will then reportedly claim their credit cards don't work and urge the targeted victim to wire money to help them. Sadly, while this scam may succeed only a small percentage of the time, the con artists still hope to defraud a small number of victims out of thousands of dollars. Here's hoping that these con artists will make a mistake by contacting a savvy elderly person who will contact the authorities and "make their day" by getting them locked up in time for Christmas!

Monday, December 7, 2009

You would think that nightclub owners around the world would have already learned about the liability and prosecution risks of allowing performing groups to use pyrotechnics in their clubs. You would also think that they would want to maintain a safe environment for their patrons. Yet, last week, another such tragedy occurred when a Moscow club caught on fire, as a result of a pyrotechnics problem, and 112 people were killed. As you may recall, this tragedy follows a similar case in Rhode Island in 2003 when 96 patrons were killed in a club fire as a result of a pyrotechnics mishap. According to Wikipedia, other similar incidents, including one at an Ecuador nightclub, have also occurred elsewhere around the world.

Business people should be aware that prosecutors around the world are now prosecuting club owners and others who are responsible for these incidents. But here's hoping that those in positions of responsibility will act more responsibly and avoid such tragedies in the future.

Thursday, December 3, 2009

As a young state prosecutor, I once had to try criminal cases in a rural, South Georgia county, which was located largely in the swamps, far below the gnat line. As I drove to court, it seemed to me that this desolate, God-forsaken county probably had more gators and possums than human beings living in it. I won't name the county, because, sure as the world, if I do, then it will be my luck that your momma was born and raised in that county! But this is a true story.

In this rural, isolated county, court was held only one week per year, during January. This meant that, if you had a hankerin' to murder anybody, you'd be better off to kill 'em in December, because, if you waited until after court week in January, then you'd be sitting and wasting in jail a mighty long time, until the judge came back to town for court the following January!

At that time, there was no courthouse in this rural county. The judge held court each year in the county's only public school. Since there were no restaurants located anywhere in the county, the clerk of court graciously provided lunch for all the court participants.

One year, only two jury trials were held in this county during trial week. The first case involved the murder by one man of another man. The other case involved the killing by one man of another man's bird dog. Well, the man who killed the other man was acquitted. But the man who killed the other man's bird dog was found guilty!

This is a true story!

What, if anything, does this story tell you about justice and bird dogs in this county?!

Wednesday, December 2, 2009

After several serious posts, let's have a little fun! We are introducing a new category: "White Collar Crime Movies." "A Civil Action" is the first movie we will discuss.

As outlined in Wikipedia, this movie is based upon a true story, (and book by the same name, by Jonathan Harr), about a lawyer's battle against a big company located in Woburn, Massachusetts. The company had allegedly committed environmental crimes and polluted the community's water supply, thus allegedly causing an alarming number of leukemia cases among local children.

The movie reveals the difficulties which plaintiffs' lawyers face in bringing class action lawsuits against big companies, along with the difficulties inherent in proving environmental crimes. The movie stars John Travolta and two of my favorite actors: Robert Duvall and William H. Macy. Although this is not a movie critic's blog, I would suggest you check out this movie!

Monday, November 30, 2009

In the last post, I tried to make the point that, assuming someone in Tiger Woods' position elects to talk with the police, (after consulting with his criminal law attorney), he should avoid telling anything but the truth. In other words, as in cases like Martha Stewart's, sometimes it's the making false statement or obstruction of justice charges that cause you more problems than the underlying offense. However, it should also be pointed out that, in many criminal investigations, it is simply best not to talk with the police at all!

Sunday, November 29, 2009

As of this writing, Tiger Woods has been discovered bleeding and semi-conscious in the street outside his Florida home. His wife has reportedly told authorities that she broke the rear window of his Cadillac SUV, after she allegedly heard him have an auto accident outside their home at 2:30 in the morning. The Enquirer reports, (i.e. gossips), that he has allegedly engaged in an affair. Thus far, Tiger has refused to talk with police. Yes, these and other facts all sound suspicious. But this isn't a celebrity gossip blog! And such gossip is not our business and not the point of this post!So, let's just focus here on a point I tried to make in an earlier post, (and illustration), about Martha Stewart. You may recall that I observed that, if Ms. Stewart had simply come clean and told the truth, in the beginning, about receiving the insider trading tip, she might have avoided prosecution. And the point here is that, in my opinion, Tiger should simply tell the truth. In my opinion, the worst thing that Tiger can do at this juncture is to lie to the police, (and public). In my opinion, this will only lead to a long, drawn out police investigation and potential police charges for making false statements. Instead, I hope that Tiger will, perhaps through his attorneys, find a way to cooperate with authorities and tell the truth to avoid further legal problems.Tiger Woods has always shown sound judgment and impeccable integrity. His judgment on the golf course is unsurpassed. Here's hoping that he will likewise avoid the potential traps and show good judgment off the golf course, too!What do you think?

Tuesday, November 24, 2009

It should come as no surprise to anyone that the criminal defense attorney for the alleged Ft. Hood killer has reportedly announced that his client may offer an insanity defense to the murder charges against him. After all, he has limited options, doesn't he?

But without judging that particular case, please let me explain why, in most cases, in my opinion, insanity is a lousy defense to offer to a criminal charge. First of all, by offering this affirmative defense, a defendant is essentially required to admit that he has committed the acts in question--in this case, murder. And that's certainly not going to make jurors want to let you go, is it?

But the real problem with insanity as a defense also lies in what the defense must show at trial in order to prevail. First of all, you must understand that there is a big difference between medical insanity and legal insanity. In other words, many of us may have (medically) insane relatives, out there walking around, who fail to meet the legal test of insanity! For example, the State of Georgia subscribes, in large part, to the old M'Naughten Rule of insanity. This is also known as the "right-wrong" test of insanity. In short, in Georgia, (reducing this test to its simplest terms), a defendant must carry a heavy burden of convincing a jury that he was so crazy, when he committed the crime, that he couldn't even tell the difference between right and wrong. This is a very heavy burden! As a result, it is almost impossible for most defendants to ever win with this trial defense, because even the sickest individuals generally know the difference between right and wrong!

Finally, as one old judge once observed about a bank robber, "If he was really insane, then why didn't he use a banana instead of a gun to rob the bank?"

Saturday, November 21, 2009

Have you, or anyone you know, ever been the victim of identity theft, or identity fraud? If you haven't yet been a victim, then, unfortunately, the odds may not be in your favor. While Wikipedia indicates that, at least statistically, the identity theft crime rate may have dropped in the past several years in the United States, it is also still reportedly the fastest growing crime in this country.The consequences of identity theft can be devastating. Consider the case of Michelle Brown. This poor woman not only suffered the impact of the loss of her credit rating, but also was forced to address an arrest warrant after a thief stole her identity and went on a credit card-spending frenzy. Can you imagine the devastating impact on your own life if you were arrested and falsely charged with crimes you did not commit?So, please protect your personal financial information and check your accounts religiously for unusual activity. Here's hoping you can avoid becoming a victim like Michelle Brown!Again, do you know anyone who has been a victim? What steps did they take to overcome the problems generated by this crime?

Sunday, November 15, 2009

This is a sad day for America. In my opinion, the decision this week by Attorney General Eric Holder to give the masterminds of the 9-11 attack a "show trial" in New York City is a colossal mistake! Here are just a few of the reasons why I believe this decision will prove disastrous:

1. Military Tribunals Are Better Equipped For the 9-11 Terrorists:

Military tribunals are better equipped to handle cases involving terrorists, or prisoners of war. Put another way, these are terrorists, not criminals! They have committed acts of war, not mere crimes, against America! Therefore, in my opinion, bringing these terrorists to American soil for a civilian "show trial" has given them Constitutional rights and protections which they do not deserve and for which the civilian courts are ill-equipped. Just consider a few of the dire potential consequences. The 9-11 terrorists will all be given fine, experienced criminal defense attorneys who, no doubt, will not only be probing sensitive national security secrets, but also finding a way to get these terrorists off on criminal charges! But other problems abound. For example, whether or not you agreed with water boarding and other "enhanced interrogation" techniques, such techniques may mean any confessions will be thrown out at a civilian trial. As a result, just consider the terrible consequences if any of these terrorists beats the rap in civilian court and goes free!

2. The 9-11 Terrorists Also Do Not Deserve a "Show Trial:"

From the very beginning, the 9-11 mastermind, Khalid Sheikh Mohammed, has reportedly requested to be returned to New York for such a trial. In short, the terrorists have desired, from the beginning, the public stage and forum which the Attorney General has now so graciously bestowed upon them. I will predict that, if the 9-11 terrorists have their way in this "show trial," they will make the O.J. Simpson debacle look like a minor traffic court case. But thanks to Mr. Holder, Khalid Sheikh Mohammed will now have the world's stage on which to preach and proclaim his message of terrorism and hate against America.

In short, this is a sad day--a sad day for America and a sad day for the victims of 9-11. Tragically, our current leaders no longer recognize that we are at war. They have pushed the re-set button and, in their 9-10 eyes, the "war on terror" has been abandoned. Instead, our leaders mistakenly view the terrorists as accused criminals who should be coddled and given the same Constitutional rights as American citizens. Indeed, this is a sad day for America!

Thursday, November 12, 2009

Doesn't everyone remember the famous scene in the movie Animal House in which John Belushi's character starts a food fight in the college cafeteria? Well, today, such antics might get Belushi thrown in jail, as well as suspended from school!

We recently had a post in which we protested the trend toward rigid, zero tolerance policies in schools around the country. As we pointed out, school children have been suspended, and even prosecuted, for innocently bringing scouting utensils and butter knives to school. But now, another incident has occurred at a Chicago school which again illustrates our point that school boards are sometimes going too far with these policies.

This time, it's a middle school food fight! And this time, two dozen school kids, between eleven and fifteen years old, have actually been arrested and face criminal charges, in addition to school discipline.

In my opinion, this is outrageous! To cart these kids off to jail, instead of simply addressing it as a school matter, is absurd! Suspend them, or even spank them, but don't prosecute them! When will common sense prevail? I think Belushi would agree with me. But what do you think?

Wednesday, November 11, 2009

Did you hear the news yesterday about two former Bear Stearns hedge-fund managers getting acquitted by a jury following a month-long jury trial in federal court in New York on fraud and conspiracy charges? The two men, Ralph Cioffi and Matthew Tannin, had been accused by the government of misleading investors, prior to the collapse of the subprime mortgage market last year. But the jury quickly found them not guilty.

In my opinion, this case illustrates my point that I have made earlier in this blog that, as experienced criminal defense attorneys know, the best criminal defense is to admit the act but deny the intent. The case also illustrates the point that, in white collar criminal cases, sometimes federal prosecutors bite off more than they can chew! Apparently the only thing these two men were guilty of was not having a crystal ball to predict the market collapse.

In this case, government prosecutors also apparently inflated the significance of emails between the defendants in which they allegedly expressed more pessimism about the market than in their conversations with investors. The bottom line is that jurors reportedly decided not to blame the unanticipated collapse of the market last year on these two defendants! While we all may be upset about Wall Street greed and the market collapse, it is good to see that fair-minded jurors could avoid creating scapegoats and render a fair verdict in this case.

Sunday, November 8, 2009

The federal Hobbs Act makes it a federal crime for any government official, including police officers, to extort money from citizens "under color of official right." "Under color of official right" simply means that the police officer, (or other government official), has used his or her badge, or official position, as a means to improperly shake you down and take your money.

As a former federal prosecutor, I prosecuted a wide variety of state and local government officials who improperly used their public offices for private gain. For instance, I once prosecuted a social agency case worker who extorted kickback payments from a foster parent in exchange for getting the foster parent a higher per diem payment for taking care of a special needs foster child. Extortion also occurs when a city licensing inspector demands money from a business owner in exchange for "looking the other way" as to city code violations. The examples are endless. But perhaps the worst kind of extortion cases involve crooked police officers who demand money, sometimes alongside the highway, in order to make traffic tickets disappear.

Have you ever heard of similar examples of extortion committed by public officials? Do you believe such extortion is rare?

Friday, November 6, 2009

"Each of us is a center of the Universe. And that Universe is shattered when they hiss at you: 'You are under arrest!' " (Alexander Solzhenitsen)

You might wonder why does this blog post begin with a quote from (and photograph of) the late Soviet dissident and Nobel Prize-winning author, Alexander Solzhenitsen. It is because, in my opinion, no one else has ever written more forcefully or eloquently about what is like to be arrested and imprisoned in one of the worst judicial and prison systems in world history.

Maybe you live in the center of your own universe. Hopefully, you live worry-free in a free society. But have you ever wondered how you would react if you were arrested by police for a crime you did not commit? Please understand that, while I wouldn't want to worry anyone, and although it probably will never happen to you, it could happen and, if it does happen, you should know how to react. If you live in the United States, here are a few important Constitutional rights for you to consider in deciding how you would react to a false arrest:

In Miranda v. Arizona, the Supreme Court recognized that, if you are arrested, it will be a very stressful situation and a coercive environment with the police attempting to obtain a confession. As a result, the Court fashioned the so-called Miranda rights which the police are required to advise to anyone who is: (a) in police custody, and (b) who is being interrogated. Everyone knows about these rights, including that "you have the right to remain silent...and the right to the presence of an attorney...." But do you understand how to invoke your rights and make the interrogation stop?

The important point here is that, if you are ever arrested, rightly or wrongly, all you must do, in order to invoke your Constitutional rights and "buy some time," is to "lawyer up" by simply asking the police for a lawyer, and/or telling them you choose to exercise your right to remain silent. The interrogation should stop. (And you should stop talking, too!) Then, after the interrogation has stopped, you can consult with an experienced criminal defense attorney before deciding how to proceed.

Every situation is different and you alone must decide how to handle it. But if you want to know how, as a practical matter, to make the police interrogation stop until you can exercise your Constitutional right to consult with a lawyer, then I hope this post has helped! We are fortunate to have these rights in this country. Sadly, many arrested people throughout the world, including Solzhenitsen, have had no protection of their fundamental rights.

Tuesday, November 3, 2009

I am sorry about posting again the photograph of convicted ponzi scheme defendant, Bernie Madoff. Based upon his crimes, he doesn't merit the attention! But his fraud case presents a number of interesting issues.

For example, in Madoff's case, it has been reported that investigators are still out there "looking at" some of Madoff's relatives and associates to determine whether to try to lock up anyone else. This raises an interesting question: How do agents and prosecutors determine exactly who all to target in a criminal investigation?

As a former federal prosecutor, I had a fairly simple, straightforward approach. I generally "followed the money" and, unless you were a top executive, or ringleader, who clearly directed and knew about, and directly profited from, the fraudulent scheme, I probably wouldn't try to "make your day" by prosecuting you, even if you had some inkling as to what was going on.

In other words, as a former corporate fraud prosecutor, I generally focused on prosecuting only the primary movers and shakers who put the ill-gotten gain in their pockets and I left alone the salaried, lower level employees, such as secretaries or book-keepers, who merely did what they were told to do. I also generally stayed away from prosecuting family members, unless they were clearly key participants in the fraudulent scheme.

But you need to be aware that other federal prosecutors sometimes utilize a different approach! In other words, I have known some government prosecutors who aggressively target everyone who participated in the scheme. Then, they gamble that they can "roll over" the lower level employees against the top targets. Please don't get me wrong: Prosecutors should be aggressive. However, in my opinion, some prosecutors simply go too far! They allow their own competitive spirit and healthy egos to determine who should be targeted. They also sometimes ignore the human costs.

And can I be honest here? In my opinion, some overly aggressive government prosecutors also lack appropriate human compassion for the people whose lives they are ruining! I will never forget the inconsiderate words of one prosecutor about a target: "It must s_ _ k to be him!"

As a result, if anyone "out there" who is reading this post is a family member or associate of Mr. Madoff, you should get down on your knees and pray that you are being investigated by a government prosecutor who possesses both some common sense and a little human compassion! Otherwise, you may have to face the consequences of being persecuted by a federal prosecutor who is simply interested in putting more notches in his or her holster!

Friday, October 30, 2009

Have you ever heard of Charles Ponzi? No, you youngsters, I am not referring to that cool character, Fonzi, from the 1950's-based t.v. series, "Happy Days!"

Instead, I am talking about the original con artist, Charles Ponzi, who was prosecuted for investment fraud back in the 1920's, and for whom the term "ponzi scheme" is named.

According to Wikipedia, a ponzi scheme refers to any "get rich quick" investment scheme in which the con artist falsely promises a high investment return, which never materializes, and then uses some of the investment money obtained from later investors to repay some of the earlier investors, in order to keep the scheme afloat.

The original Ponzi's crimes pale in comparison to the crimes committed by Bernie Madoff, who was sentenced in June to serve a whopping 150 years in prison. And did you hear the news earlier today that one of Bernie Madoff's assistants, David Friehling, has entered a guilty plea for his role in helping Madoff rip off investors for a record $64.8 billion, according to Wikipedia?

Ponzi may have had the crime named after him, but it appears that Madoff, with help from others, perfected it. Maybe we should re-name it the "Madoff scheme," in his (dis)honor. And trust me, Fonzi wouldn't believe Madoff's crime was cool!

Thursday, October 29, 2009

Over the years, I have observed that the best trial lawyers have a theme, or theory, of their case, which they utilize thoughout the trial.

For instance, if your theory, or defense, involves accident or mistake, then you will want to help the jury focus on this theme throughout the trial. For example, if accident or mistake is your defense in a Medicare fraudulent billing case, beginning with jury selection, during voire dire, the defense attorney may ask prospective jurors several questions concerning whether they have ever made mistakes while filling out forms. Of course, we all have made such errors! But the answer is not the important point. The important point is that the defense attorney is trying to develop a theme and encouraging the jurors to think about the possibility of making a mistake. You also hope the jury will relate to your client.

Another good theme I have seen used at trial involves the old saying, "bad things happen to good people." Doesn't that theme give you a good image of a person that you can relate to? Again, the point is that you want the jury, from the very beginning and all throughout the trial, to relate to your client and to recognize that a mistake may have occurred, but that your client is not a "bad egg!"

Of course, utilizing a theme can carry you only so far at trial! For instance, if the government has video tape, DNA, and finger print evidence, your goose may be cooked no matter what theme you utilize! And if you were representing Charles Manson, would a theme really matter?! What could your trial theme be for Manson? "Bad things happen to mad, psychotic people?!"

Saturday, October 24, 2009

In my opinion, there has been an unfortunate, excessive trend, in the United States, toward rigid, "one-size-fits-all" laws. These bad laws include mandatory sentencing laws and zero tolerance policies.

I have no problem with some mandatory sentencing laws, especially for violent, repeat criminal offenders. For such dangerous, repeat offenders, I believe most of us would generally agree to "lock 'em up and throw away the key." But the mandatory sentencing laws go much further. All around the country, legislatures are deciding to take away sentencing judges' discretion by mandating minimum sentences to be served for various crimes. For example, we have seen some offenders getting mandatory life sentences under some states' "three strikes" laws for simply shoplifting items worth a few dollars. In my opinion, this is going too far. While some mandatory laws are good, sentencing judges still need some discretion to avoid extreme results.

I also take issue with some "zero tolerance" policies that are in vogue around the country. For instance, school boards everywhere have jumped on the bandwagon with their inflexible zero tolerance policies concerning weapons on campus. Just this past week, we have all read about the Delaware first grader who was suspended for innocently taking a cub scout all-purpose utensil to school. And did you hear about the high school eagle scout who was suspended simply because he had a scouting knife carefully tucked away in his car trunk? In my opinion, these suspensions, based upon these rigid zero tolerance policies, are outrageous!

When will state legislatures and school boards get back to using a little more judgment and common sense? One size does not always fit all. What do you think?

Tuesday, October 20, 2009

Do you recall this guy, the "Maytag repairman," from the Maytag Company's television commercials? He was depicted as "the loneliest guy in town," because, according to Maytag, their appliances never needed repairs!

Well, as a criminal defense attorney, I sometimes feel like the Maytag repairman, too! Let me explain! As a former federal prosecutor for over 20 years, I often had a team of federal agents at my disposal, while working with me on major fraud and public corruption cases. On one major Medicare fraud case, I supervised a task force of five auditors and six or more agents. If I wanted to subpoena a witness, I simply picked up the telephone and called one of my agents and asked them, (politely, of course!), to go and serve it. And if I wanted some more witnesses, I could send out a team of agents to find them.

But now, as a criminal defense lawyer, I no longer have the full weight and power of the federal government at my disposal. If I need to subpoena a witness, I must either pay a private investigator to do it, or I do it myself. And if I need some more witnesses, I must get on my horse and go find them myself! In many ways, I am all alone, while aggressively defending my clients!

So, don't you see, a criminal defense attorney is sort of like the Maytag repairman, "the loneliest man in town!"

Sunday, October 18, 2009

Okay, I realize that, just two posts ago, I complained about the unreliability of crime rate statistics. But I still have one more rant in mind concerning the topic of crime statistics. This rant concerns the myopic focus of the United States Department of Justice in emphasizing crime statistics too much. In other words, I am back on the soapbox today to complain about how, in my opinion, the DOJ inappropriately pushes each U.S. Attorney's Office around the country to focus more on the quantity of cases, rather than on the quality of cases, which each office prosecutes. In my opinion, DOJ does this in several ways.

For example, in recent years, DOJ, which oversees all 94 U.S. Attorney Offices around the country, has increased the statistical reporting requirements by each office. For instance, each U.S. Attorney's Office is periodically required to submit meticulous records to DOJ in Washington as to the number of hours spent by each Assistant U.S. Attorney, (and each U.S. Attorney's Office), along with the numbers and types of each of the criminal cases prosecuted. Then, DOJ crunches these numbers and they can (and do) "encourage" some of the offices with lower numbers to increase their numbers in certain crime categories, or else the U.S. Attorney's Office may lose funding for prosecutor positions! In other words, in my opinion, as a result, the focus of the federal government is now more on case numbers than on case quality or outcome.

In addition, DOJ periodically sends out evaluation teams to each U.S. Attorney's Office around the country to ensure that each office is complying with DOJ priorities. While, in some ways, such evaluations are a good management tool, the problem is that it promotes each U.S. Attorney's Office to "do what Washington expects," even if local crime problems present different challenges than Washington's "cookie cutter" approach. And the consequences of not following DOJ's directives can be serious: again, DOJ will not only castigate a non-compliant U.S. Attorney's Office in writing, but may also withhold some funding of U.S. Attorney Office positions.

Finally, one of DOJ's real problems, in my opinion, is the fact that, in evaluating its crime statistics, the DOJ also generally rates each criminal case, both large and small, just the same. For example, generally speaking, each small gun trafficking case is considered a "number," just the same, for many statistical purposes, as each large gun trafficking case. And the same is true for every fraud case, drug case, and for criminal cases in every other crime category. As a result, (although presumably each Office will try to do the right thing), there is no incentive from DOJ for the U.S. Attorneys' Offices to devote significant resources to large, complex cases, since DOJ will not give that office any more statistical credit for working on the big federal criminal cases. And if you work on a few large cases, then you may get penalized if you then have less time to boost your small case stats! So, what would you guess the U.S. Attorneys' Offices are going to focus on -- more small cases or a few large cases?

As a former federal prosecutor, (and current criminal defense attorney), I am concerned that, in the future, we will not see many U.S. Attorney's Offices working on very many long, complex federal criminal investigations. They simply can't afford it because DOJ's approach simply doesn't encourage it. Instead, the trend is toward U.S. Attorney's Offices focusing more on small drug cases and other quick, "slam dunk" types of cases, so that they can generate large case numbers to please Washington, and keep their resources!

So, that is why I am on the soapbox today! In my opinion, DOJ's "numbers" policy encourages the prosecution of the "little fishes" and may let the "big fishes" get away! So, after 20 years of working for DOJ, now you can see why I am sick of crime statistics! What do you think?

Friday, October 16, 2009

As you can plainly see the picture above, this is a white hat. My question for you today is: In a criminal case, who really wears the white hat in court? Is it the crusading prosecutor who, while standing up for his or her crime victim, is fighting to protect society and for "truth, justice, and the American way?" Or is it the criminal defense lawyer who, while defending the accused, is fighting, as the under dog, to make the government do its job properly and ensuring that his client gets their "fair day in court?"

The point of this post is that, in my opinion, BOTH advocates should get to wear the white hat to court! In other words, in order for our criminal justice system to work properly, it requires good, experienced advocates seeking justice on BOTH sides of the courtroom. And even though I was a federal prosecutor for over 20 years, and a defense attorney for only less than 5 years, I am convinced that defense attorneys have just as an important role to play as the government lawyers.

Wednesday, October 14, 2009

According to Benjamin Disraeli's famous quote: "There are three kinds of lies: lies, damn lies, and statistics." Nowhere is this more true than with crime rate statistics. For example, each year, the F.B.I. issues its Uniform Crime Reports, which is a compilation of crime statistics for certain serious crimes which are compiled by the F.B.I. based upon submissions from law enforcement agencies around the country. These reports may serve as a decent barometer. But, in my opinion, these annual reports are flawed. Or at least they don't give us a complete picture about crime. Here are a couple of reasons why:

1. There have been a number of reports about various state and local law enforcement agencies around the country which have submitted inaccurate information to the F.B.I. about crime stats in their jurisdictions. But there is another more fundamental reason why you shouldn't trust crime rate statistics:

2. Let's assume you are a sheriff who is running for re-election. In order to get re-elected, you might direct your investigators to make fewer street level drug arrests during the months leading up to the election. Then, you could (falsely) claim that you have "cleaned up Dodge City" because the crime statistics (and number of drug arrests) are down. On the other hand, if you have worked hard to make more drug cases, and the number of arrests have gone up, then, ironically, the crime statistics might make it (incorrectly) appear that a new sheriff is needed to deal with the growing drug problem! Don't you see my point? Do you agree?

So, in my opinion, while Disraeli may not have been absolutely correct about statistics, he was pretty close. We should at least take crime rate statistics with a grain of salt. Of course, I'll bet there's one crime statistic about which we can all agree: that is, that the crime rate is always "going up!"

Friday, October 9, 2009

Have you heard the news this week? The mafia is reportedly moving into the Medicare fraud racket! As if Medicare fraud wasn't already bad enough, now organized crime is reportedly trying to get a piece of the action!

Medicare fraud has indeed already been a major problem in this country. Now, it is just going to get worse. While there appear to be no reliable statistics, according to Wikipedia, of the $368 billion spent on Medicare billings, (for the elderly), each year, approximately 20% of the billings are fraudulent! Folks, that's over $73 billion per year in health care fraud in this country!

As a former federal prosecutor, in my opinion, part of the problem lies in the fact that Congress does not appropriate sufficient funds for law enforcement to combat Medicare fraud. According to Wikipedia, right now, the F.B.I. alone has open over 2,400 open health care fraud investigations. There simply are not enough agents and prosecutors solely dedicated to combatting this problem.

Moreover, in my opinion, some of the investigations are ill-conceived and improperly focus on legitimate medical doctors, hospitals, and other health care facilities that simply make billing mistakes. The government's focus should be on the real crooks.

And now, if things weren't already bad enough, the mafia is getting into the action! Wow! Sometimes, such bad news makes you wonder if things aren't just all going to Hell in a handbasket, doesn't it?!

Tuesday, October 6, 2009

There are so many kinds of lawyers "out there!" For example, there are divorce lawyers, real estate lawyers, personal injury attorneys, and bankruptcy lawyers, just to name a few. But did you know that there are also different kinds of criminal lawyers, based upon the types of criminal cases which they are experienced in handling?

So, what should you do if you are a target of a federal grand jury investigation? In other words, what kind of criminal lawyer do you need if you face potential federal criminal charges?

In my opinion, any person facing the possibility of a federal criminal indictment should try to find an experienced federal criminal defense lawyer, and not just any criminal defense attorney will do. Naturally, I will admit I am biased, because I am a former federal prosecutor who has over twenty years of experience in trying all types of criminal cases in federal court. But please also consider the following reasons why, in my opinion, you should look only for an experienced federal criminal lawyer to help you in this situation.

First of all, the federal court procedural rules are different. Most criminal lawyers, (even some outstanding advocates I know), who practice only in the state courts, essentially have no clue about the pretrial rules which apply in federal court. In federal court, the government must comply, for example, with the federal Speedy Trial Act and the Jencks Act. Also, many state criminal lawyers do not know the difference between a "Rule 11" and "Rule 16!"

In addition, an experienced federal criminal lawyer will more likely know the federal agents and prosecutors and how to plea bargain in federal court. Trust me, folks, things are different when you deal with the feds!

Also, jury selection rules and trial procedural rules are often different from the procedures followed by the state courts. While it is not always the case, sometimes federal criminal cases are also a lot more complex than state cases. As a result, federal criminal cases may also require a more sophisticated understanding of the federal charges and what the government must prove at trial. The difference between the two court systems is like the difference between playing checkers and chess!

Finally, sentencing in federal court is vastly different from sentencing in state court. In federal court, a criminal lawyer must be familiar with the infamous federal sentencing guidelines. These guidelines can be very complicated! At times, sentencing in a federal criminal case can resemble a "mini-trial."

So, have I convinced you to look for an experienced federal criminal defense attorney in your area for your federal criminal case?

Saturday, October 3, 2009

As a former federal prosecutor in Augusta, Georgia, I once prosecuted a bank executive who had pulled off the "perfect crime." Well, it was almost perfect! After all, she did get caught, or else I wouldn't be telling this story! Here is what happened and how she got caught.

"Miss Moneypacker," the crooked bank executive, was in charge of handling the accounts of the bank's wealthier customers. Her job included opening their accounts, arranging lines of credit, and otherwise providing them with good, personal service. (She was sort of like Mr. Drysdale or Miss Hathaway in the "Beverly Hillbillies!") In other words, if a wealthy bank customer needed something, they knew to always call "Miss Moneypacker" for assistance.

"Miss Moneypacker" was not only very attractive, but also she was very intelligent. She realized, for instance, that, as to her handling of the wealthy customers' accounts, her bank bosses had virtually no checks and balances in place. In other words, other than routine bank audits, there was no one looking closely over her shoulder. So, here is what she did: Occasionally, a wealthy bank customer would contact her and inform her that they were moving out of town. Then, these customers would come in the bank, give her a check, and ask her to help pay off and close their lines of credit. Now, "Miss Moneypacker" was smart enough NOT to steal these checks. She dutifully used the customer's check to pay on their line of credit. However, the wiley "Miss Moneypacker" did NOT close out the customer's line of credit. Thereafter, the customer moved away, believing that they had paid off and closed their accounts. Little did they know that "Miss Moneypacker" had kept their accounts open and continued to borrow thousands of dollars against their line of credit! She did this over and over again. She also submitted paperwork causing the bank to send monthly statements to new bogus addresses established by her. And she always carefully made payments each month on the (still open) lines of credit.

"Miss Moneypacker" also took many other steps to make sure she would never get caught. For instance, she would request the production of new PIN numbers and ATM cards, ostensibly for these customers, and then she would use the ATM debit cards to withdraw thousands of dollars each day at various ATM machines. This "perfect crime" actually continued for several years without any problems! Can you guess how "Miss Moneypacker" got caught?

One day, "Miss Moneypacker" got sick! So, she wasn't there when Harvey Smith, one of her former customers who had moved away, came back into the bank. Harvey had moved back to town and wanted to open a new line of credit! Another bank official had to step in and help Harvey, because "Miss Moneypacker" was out! Just imagine Harvey's (and the bank official's) shock and surprise when they learned that Harvey still owed the bank over $100,00.00 on his (still open) line of credit! The bank called the F.B.I. and all "Miss Moneypacker's" shenanigans were discovered! She was charged with federal bank fraud and bank employee embezzlement. The bank had lost over half a million dollars!

So, the moral to this story might be that, if you want to commit the perfect crime, you should never call in sick! (If "Miss Moneypacker" had been at work that day, she could have finessed the situation with Harvey, and I suspect she would still be the "line of credit queen!") Or maybe the moral should be: Don't do the crime, if you don't want to do the time!

Thursday, October 1, 2009

The above photo is one of my three sons--and current law partner. (I also have a wonderful daughter). As many of you know, The Goolsby Law Firm, LLC, is a father and son law practice.

My son and I practice law together in Augusta, Georgia. We primarily handle criminal defense, (both state and federal courts), and divorce cases, along with personal injury cases, and other general litigation. I also have a second son who is presently attending law school and a third son who also plans to attend law school when he graduates from the University of Georgia. (Only my wise daughter wants to become a teacher!) Eventually, we hope to be a true "family law firm" with a father and three sons practicing law together, here in Augusta, (and Martinez and Evans), Georgia. I am very proud of all four children! But I also face an interesting challenge! It involves working with family members.

Have any of you ever been in business with a family member? I am confident that you can understand that, while working with family members is a special thing, it also presents real challenges! As a dad, I must diplomatically juggle my "father hat" and my "partner hat!" In other words, I must show respect for my son's opinions and try not to foist my will upon him, simply because I am his father. Likewise, I am sure that my son must walk a tightrope, at times, between wanting respect from me for his opinions, as a partner, while, at the same time, recognizing that I AM his dad and have "been around" a while longer!

Yes, it is a challenge! But I enjoy this challenge and wouldn't trade it for any other! (And now, I must get back to work, so I can address the "other challenge" of building a law practice for myself and three hungry sons!)

Tuesday, September 29, 2009

You might justifiably be wondering why does a criminal defense attorney have a picture of a cock roach in a blog about white collar crime! (And please hold the comments or jokes about criminal lawyers and roaches!)

The point I wanted to make in this post is about the importance to lawyers, (both civil and criminal), of using illustrations in closing argument at trial. The relevance of the cock roach will become apparent below! As the son of a Baptist preacher, I once marveled at how my father kept his congregations enthralled through his use of poignant or funny illustrations. I have learned that the same is true for jurors. By weaving in both quotes and illustrations, a good trial attorney can help keep the jury interested and focused on the points he or she is making.

For example, in one of my public corruption trials, (as a former federal prosecutor), I wanted to emphasize to the jury the point that the defendant politician knew about all the corrupt activities going on around him. To illustrate the point, I told the jury that, "Not even a bashful cock roach could sneak into his business without him knowing about it!" I also used a quote from the Bible, during the same closing argument, "Do not lie, do not steal, do not deceive one another." I won my case!

Now, to be honest, I doubt very seriously that I won this federal criminal case simply by using illustrations in my closing argument! But I AM convinced that, by using illustrations, a trial lawyer helps keep the jury focused and better explains important points. And I'll bet even an intelligent cock roach would agree with me on this point!

Sunday, September 27, 2009

At some point during the next year, the United States Supreme Court is expected, for the first time, to grapple with the issue of what constitutes "honest services" mail fraud. In May, 2009, the Supreme Court granted certiorari in the appeal by a business man of his conviction under the statute. (Black v. United States). His defense attorneys claim the statute is too vague.

In 1988, Congress enacted this statute, (18 U.S.C. 1346), which essentially makes it a federal crime for either a politician or a business executive to use the mails in furtherance of a scheme to "deprive another of their intangible right to [the politician's, or business executive's] honest services.

The "honest services" mail fraud statute is a popular prosecutorial tool used by federal prosecutors everywhere! As a former federal prosecutor, I often utilized this statute to charge corruption cases, too!

Frankly, it is easier to see what this "honest services" statute means when it is applied in the public sector, i.e. to politicians. For example, it is clear to see that a politican has deprived the public of their right to his "honest services" when he uses his public office for private gain and secretly lines his pockets with money. Whether or not he is guilty or innocent, that is the type of case which former Illinois Governor Rod Blagojevich faces.

But applying the "honest services" statute to the private (business) sector presents some tougher questions about what the mail fraud statute really means. The issue in the pending appeal before the Supreme Court involves trickier questions about whether the statute, (and the meaning of "honest services"), is too vague, including issues about how far does the statute go in criminalizing business deals, and does it criminalize mere ethical violations. It also raises questions about to whom does a business executive owe a duty of "honest services," and is that duty based upon state or federal law? In other words, the Supreme Court must decide, in this new case, whether or not the "honest services" mail fraud statute is too vague, because it fails to give adequate notice to the average person as to what constitutes a crime.

Just as you never know what a jury will do, you also can never fully guess what the Supreme Court may do! But it will be interesting to see what happens! And I suspect former Governor Blagojevich and his defense attorneys will be watching, too!

Thursday, September 24, 2009

Have you heard about the alleged "turf battle" between the F.B.I. and local New York law enforcement officers during their ongoing investigation of a reported terrorist group? This is scary news! Don't you agree that, if the story is accurate, it is critical that the two agencies get together and work out their issues?

In my experience, unfortunately, law enforcement agency turf battles are quite common. "Turf battles" typically involve petty jealousies, personal squabbles, and lack of information sharing. Such squabbles are also common among law enforcement agencies on all levels. As a former Assistant D.A., I saw police chiefs who didn't get along with sheriffs in their jurisdictions. And as a former Assistant U.S. Attorney, at times, I saw the D.E.A. squabble with the F.B.I., the F.B.I. fussing with the A.T.F., and A.T.F. disagreeing with the D.E.A.

In turf battles, the general public is the ultimate loser. The public may view the law enforcement community as a "family." But trust me, while law enforcement may be like "family," at times, they are a disfunctional family!

But don't you agree that, especially as to terrorism, we cannot afford any turf battles. Hopefully, the heads of these agencies have already met and worked out any issues. And hopefully, by working together, they can more easily beat the bad guys!

Wednesday, September 23, 2009

So, you might wonder, what do the old t.v. game show, "Queen For A Day" and old motels have in common, and what could they possibly have to do with white collar crime?!

Well, here is my explanation! There is a connection between the two, or at least I intend to try to make one! Have you ever heard of this old television game show which, according to Wikipedia, aired from 1956-1964? The premise of the game show was that several contestants would each offer their own personal sob story of their tragic lives. Then, the studio audience would vote on who deserved to be "Queen For A Day" and the winner got a crown and a new washing machine!

Being a "queen for a day" also has a special connotation today in criminal law. It is a term often used to describe a person who agrees to meet with government agents to discuss a possible deal. The government agrees that, during the off-the-record meeting, nothing you say will be used against you. You are, in essence, a "queen for a day!" (But you probably won't get a new washing machine!)

But THAT is not the connection I intended to make here! Instead, I want to make a different point: If I could be governor, or "king for a day," I would introduce legislation authorizing the state to purchase old motels around the state for use as diversion centers. In my opinion, diversion centers are a good, less costly alternative to prisons which offer judges an alternative place to send non-violent white collar criminals. There, the check forgerers, bad check writers, and drug users can stay, in a structured, but minimum security, environment at night, while they are required to work during the day, off-site, to help pay for the diversion center's costs, and to help pay on their restitution and fines. This is such a great idea. It is not only less costly, but also it means that our prisons, which are overcrowded, could then be used to keep violent, dangerous offenders even longer! But this is an idea which is not in vogue. In fact, in our state, they are closing down, not expanding, diversion centers everywhere.

So, that is my connection between "Queen For A Day" and old motels! If I could be "king for a day," I would buy old motels and convert them into diversion centers!

And now that you have heard my sob story, won't you please vote for me to be "King For A Day," so that we can open some more diversion centers?! And if you want to give me a new washing machine, that is okay, too!

What do you think about using diversion centers as an alternative sentencing measure for non-violent criminals?

Monday, September 21, 2009

Everyone is familiar with Double Jeopardy, aren't they? And no, I am not referring to the second half of the quiz show, "Jeopardy!" I am referring to the Fifth Amendment's prohibition against trying a defendant twice for the same crime! OR, as Alex would put it, in the form of a question: "What is the Fifth Amendment's prohibition against trying a defendant twice...."

But what does double jeopardy really mean? Did you know, for example, that double jeopardy does NOT prevent the federal government from indicting you and trying you in federal court, even after you have been acquitted in state court for the same crime?! The courts have actually held that this scenario does not constitute double jeopardy, because it involves two sovereigns: state and federal. The Rodney King police beating case is one example of this situation. There, you may recall, the police officers were tried and found not guilty in state court, and then they were charged and tried again in federal court. While this doesn't happen often, the point is that it can happen and does not constitute double jeopardy.

But did you also know that, before a federal prosecutor may seek a federal indictment against a criminal defendant who has already been tried for the same offense by the state, he or she must seek permission and a waiver from the Department of Justice. Do you know what this policy waiver is called?

As Alex would answer: "What is the "petit policy?!" What do you think about this practice by federal prosecutors of trying someone twice for the same crime?

Wednesday, September 16, 2009

Okay, I am upset about a new criminal law issue here today! So, I am climbing back up on the soapbox again to complain about it! Today, I want to complain about the improper law enforcement habit, in recent years, of naming and defaming a "person of interest." This bad habit usually occurs in high profile criminal investigations in which the chief investigator or agent calls a press conference and names a potential suspect. The purposes of this unfair practice apparently include deflecting public pressure off the cops to catch the "bad guy," and applying public pressure on the "person of interest" in order to make them sing like a canary. In my opinion, this practice of defaming someone without proof is WRONG! In my opinion, the police should either just quietly do their jobs and develop sufficient probable cause to ARREST someone, or they should just shut up until they do so!

I don't recall exactly when this bad habit of naming a "person of interest" first began. But it is of fairly recent origin. Did it begin in 1996, for example, during the Atlanta Olympic bombing episode, when police falsely named security guard Richard Jewell, (pictured above), as a "person of interest?" You may recall that Jewell was actually a hero who found a pipe bomb and saved lives. You may also recall that being named a "person of interest" by police, who apparently hungered for headlines and an easy scapegoat, nearly ruined Jewell's life. Police and the news media hounded poor Jewell until the real Olympic bomber was caught. But they didn't learn a lesson from this sordid episode.

Now, the police are doing it again! You may have read today's news story about police naming a "person of interest" in the alleged murder of a Yale student employee. We cannot possibly know if he did it or not. But that is not the point here. The point here is that we do know that this practice of naming a suspect without charging them is unconstitutional and just plain wrong!

As a former prosecutor for over 26 years, (and currently, as a criminal defense lawyer), I am certainly no bleeding heart! And I will stack up my victims' rights advocacy credentials next to anyone's. But I can tell you that there is NO provision in the law or Constitution for naming a "person of interest." The law simply provides that if the police develop probable cause, they may arrest and charge a "defendant." Nothing more. Nothing less!

So, please just do your jobs, people, and stop naming and defaming "persons of interest!" And while you are at it, please also quit calling press conferences every five minutes about pending criminal investigations! There, I've gotten it off my chest! Now, tell us, what do you think?

Tuesday, September 15, 2009

They say that if you try enough cases, you will see or experience just about everything! I have learned that you never know what to expect in a jury trial! One of the strangest things I ever witnessed in a courtroom occurred during one of my Dodge County, Georgia vote-buying trials. I actually saw a woman slap a man as he testified! And nobody did anything about it! But first, let me give you a little background of this strange saga.

Dodge County is neatly nestled down in central Georgia. The largely rural county has had an infamous tradition of political candidates, (and their supporters), paying people to vote for them. As an Assistant U.S. Attorney, I was assigned to handle what turned out to be the largest vote-buying case in U.S. history. We successfully prosecuted a total of 28 defendants for buying votes, including the sheriff and both candidates running for Dodge County's sole county commissioner seat.

But this post really isn't about the case; it's about what happened at one of the vote-buying trials. The incident in question involved a blind, almost deaf male voter, (we will call him "Mr. Smith"), who had been paid $60.00 to vote for a particular candidate. Now, let me interject and emphasize here that, in telling this story, it is not my intention to denigrate or make fun of this poor gentleman, "Mr. Smith," or his physical challenges. Being blind or deaf are not to be made sport of. But it is what happened to "Mr. Smith," and not his challenges, that is the point of this story.

For the trial, I had carefully interviewed and selected approximately 75 witnesses, of all whose votes had been bought, including "Mr. Smith," who were willing to testify that they had been paid for voting. While pre-trying "Mr. Smith," I became aware of his challenges, including the fact that he was hard of hearing. So, I had wisely decided, prior to trial, to simplify my questions to him when he took the stand. I carefully explained what my two questions were to "Mr. Smith" and his elderly live-in caretaker, "Ms. McGillicutty." I told them that I planned to ask: "Did you vote last Summer?" And my second planned question was: "Were you paid for voting?" I figured this plan was as simple as dirt! Surely, nothing could go wrong! And I also calculated that if the defense lawyers wanted to ask him a lot of questions, then they could deal with the ensuing train wreck, because poor "Mr. Smith" might not hear a word they said.

On the day "Mr. Smith" testified in federal court, in Dublin, Georgia, and before he took the witness stand, I stood up and explained his situation to the judge. I asked if he could sit in a chair in front of the jury box, so he wouldn't have to navigate his way up to the witness stand. The judge kindly granted my request. The judge also advised the court security officer to bring up a chair for the caretaker, "Ms. McGillicutty," who had escorted her ward into the courtroom. The court security officer put her chair directly behind "Mr. Smith's" chair, with both chairs facing the jury.

After "Mr. Smith" was sworn in, I asked the first of my two carefully planned questions. I loudly bellowed, (so "Mr. Smith" could hear me), "Did you vote last Summer?" Naturally, I expected to hear, "Yes." But that's where the strange incident began! Instead of saying "yes," I was shocked to hear him reply, "No!" And then the wheels came off the bus, when, to my utter shock, I saw "Ms. McGillicutty" lean forward, behind "Mr. Smith," and say, "Yes, you did," as she simultaneously slapped the poor man in the back of his head! Almost as quickly, and after receiving this abrupt cue, "Mr. Smith" changed his errant answer and yelled out, "Yeah!"

I could not believe what I had just witnessed! The woman had actually slapped a witness in the head! I paused and waited for the judge or defense attorneys to object or somehow protest this strange occurrence. But I was equally shocked that there was no reaction from any of the defense attorneys. They all just sat there! They did nothing! Maybe they were just shell-shocked, too!

So, I immediately proceeded to my second planned question: "Were you paid for voting?" And here, dear readers, words cannot adequately describe the expression on poor "Mr. Smith's" face, or the cringe he exhibited, (no doubt he was worried that he would get slapped again, if he answered incorrectly!), as he softly replied, "Yeah."

That was it! "No more questions, your Honor," I shouted, as I ran for cover at the prosecution table! But the defense attorneys all still just sat there, at their tables. They did nothing! Finally, one of them stood and announced, "We have no questions!"

This unusual episode had ended! Ultimately, with the help of "Mr. Smith," (and "Ms. McGillicutty!"), along with all the other witnesses, all the defendants were found guilty of vote-buying. And once again, I had learned a lesson that, no matter how hard you prepare, you never know what to expect in a jury trial!

Monday, September 14, 2009

I want to get on the soapbox today! As many of you know, I am a former federal prosecutor. I've seen the good, the bad, and the ugly about federal investigations. Today, I have a beef about some federal prosecutors who needlessly drag out some federal criminal investigations! A lot has been written about waterboarding of terrorists recently. But that is not the point of this post. Instead, the point here is that, sometimes, lengthy federal grand jury investigations must feel like waterboarding to the business people and other targets of such investigations.

Federal prosecutors are entrusted with an awesome power and virtually unlimited resources to investigate and prosecute. But occasionally, that prosecutorial power is abused. And in some federal criminal investigations, it occasionally appears as though the federal prosecutors have no tangible goal other than the harassment of their targets. The grand jury investigations drag on and on, and the water just keeps on dripping.

The length and complexity of some federal criminal investigations are primary distinctions from most state criminal investigations. For example, a typical state murder investigation may take only a few days or weeks to wrap up, but some complex federal grand jury investigations may literally drag on for years.

In my opinion, as a former federal prosecutor, as long as there legitimately are targets and evidence which you are pursuing, then the prosecutor may be justified in continuing the investigation. But at some point, if the evidence does not materialize, then the federal agents and prosecutors are obliged to "pull the plug" and leave the poor targets alone! As Kenny Rogers would say, "You've got to know when to fold 'em...." But a few prosecutors never seem to know.

This post isn't about a liberal view or a conservative view--it's about fundamental fairness!

In addition, in my opinion, after pulling the plug, the federal prosecutor should also then send a letter to the former target's lawyer which informs them that the investigation has ended and no charges will be brought. Unfortunately, such "closure letters" are not often sent in the real world! In the real world, the former targets generally never get any real closure after they have been stepped on by the government.

All you get, as a former target, after tangling with the government, is huge legal fees, a loss of time, and, in some cases, a loss of reputation. I can imagine that many former targets feel like former Defense Secretary Casper Weinberger, who declared after jousting with, and beating, the government, "where do I go now to get my reputation back?"

But it doesn't have to be this way. Federal prosecutors must always consider the impact of the awesome power they wield and they should try harder to make their investigations fair. In short, more federal prosecutors should be willing to stop the water torture and pull the plug sooner on dead end investigations.

There, I feel better now, and I'll get off the soapbox...at least for now! What do you think?

Friday, September 11, 2009

It is a fact that most criminal cases don't go to trial; instead, most cases, (perhaps 80-90% of all criminal cases), result in plea bargains. Plea bargaining is like the WD-40 of the criminal justice system. Cutting deals to avoid trials generally benefits both parties and it also removes the "squeaks" from our overloaded courts. In other words, without some plea bargaining, our courts would arguably collapse from the weight of all the defendants demanding trials!

However, as a former federal prosecutor, (and currently as a criminal defense lawyer), I can tell you that prosecutors should try to avoid some of the evil, or seemier, sides of plea bargaining. Here are a few ideas:

1. Consult With Your Crime Victim: Most of the bad rap on plea bargaining comes from the prosecutor not taking the time to simply talk with the crime victim, (or victim's family members), before cutting a deal with the defense attorney. Imagine how you would feel if your family member has been murdered and the prosecutor has allowed the defendant to plead guilty to a lessor charge without giving you any forewarning or explanation. You would be outraged! Over the years, I have learned that, if you communicate with a victim, (or victim's family members), and develop a good rapport, then they will trust you if you need to plea bargain because of evidentiary problems. But you must earn that trust through communication!

2. Consult With Your Case Investigator: Also, imagine how you would feel if you were a criminal investigator and you have worked your tail off to catch a bad guy, and then some wet-behind-the-ears prosecutor has plea bargained your case to "spitting on the sidewalk" and has done so without ever calling you to get your input! This happens in the real world! And it explains why investigators often dislike plea bargaining, (and some prosecutors)!

3. Avoid Plea Bargaining As To Sentence: A lot of the bad rap about plea bargaining also comes from the prosecutor agreeing to a specific sentence that the defendant, "Sluggo," gets to serve. In other words, don't you agree that there is something a little unsavory about allowing Sluggo to have a say-so about his own sentence? Prosecutors can avoid this scenario by attempting to plea bargain only as to the number of counts a defendant must plead guilty to, or by allowing a defendant to plead guilty to a lesser included offense, but leaving the question of sentencing up to the judge.

These are just some of the ideas that I have learned, as a former prosecutor, about how to lessen the "evils" of plea bargaining. Again, plea bargaining may be evil, but it is a necessary evil. And the primary key to avoiding its seemier side is for the prosecutor to COMMUNICATE -- with the crime victim, (or victim's family members), and with the investigator who made the case.

Don't you agree that good communication is often the key solution to problems in most relationships?!

Wednesday, September 9, 2009

Why do a few devious prosecutors withhold exculpatory evidence which should be turned over to the defense attorney in criminal cases? Other than sheer laziness or overzealousness, I really don't understand why prosecutors conceal such evidence! But as a former career prosecutor, I believe an "open file" discovery policy is not only more fair to the defendant, but also it helps the prosecutor, too. Here's why!

The Supreme Court held in Brady v. Maryland that the government must turn over to the defense lawyer any "exculpatory evidence;" that is, any evidence which tends to exculpate or show the defendant may be innocent. Many appeals of convictions address whether or not the prosecutor complied with this rule. As a former prosecutor, I found that, by providing "open file" discovery of my entire file to the defense lawyer, (other than sensitive victim or informant information), I could avoid such questions on appeal.

I also learned that, by turning over a copy of my file, and showing the criminal defense lawyer that I had a great case, it also helped me to obtain guilty pleas more quickly.

Finally, I learned that by providing "open file" discovery to the defense attorney, I could sleep well at night! In other words, I could be confident that I was ensuring the defendant a fair day in court!

So, in my opinion, just as honesty is generally the best policy, "open file" discovery in criminal cases is the best policy, too! Devious prosecutors should wise up!

Sunday, September 6, 2009

All my career, both as former prosecutor and current defense attorney, I have heard people say, "If the defendant is really innocent, why didn't he take the witness stand?" If you were chosen to be a juror in a criminal case, could you follow a judge's instructions that you must not hold it against the defendant if he or she chose not to testify?

The 5th Amendment essentially protects each of us against having to testify and perhaps (unintentionally) incriminating ourselves. Also, judges always instruct juries that each defendant is presumed to be innocent and that the defendant does not have to testify. But like a lot of defense lawyers, I live in the real world and I am always afraid that some jurors will overlook the judge's instructions and hold it against my client if he decides not to take the witness stand.

As a result, I always carefully discuss the pros and cons with my client before my client decides whether or not to take the stand.

It is important to point out that there are many reasons, aside from any question as to guilt or innocence, as to why a defendant might choose not to testify. For example, some defendants might be innocent, but inarticulate. In other words, in this situation, the defendant and his attorney might be afraid that, if he testifies, an experienced prosecutor might be able to twist his words and make him look guilty. In other situations, while the defendant may be innocent, he may also have a bad temper. In that situation, the defendant and his defense lawyer may fear that the prosecutor may try to make him look guilty by making him lose his cool on the witness stand. Folks, these things can happen in the real world and in a real trial!

Each criminal case is different. And in each case, it is critical that a lawyer and client should carefully consider and discuss the client's decision about testifying. But it is also important to recognize the harsh reality that some jurors may simply hold it against the defendant if he or she exercises their Constitutional right not to testify.

What do you think? Would you be able to follow a judge's instructions? And please be honest: Would you hold it against a defendant who chose not to testify?

About Me

We are father and son attorneys who enjoy practicing law together in Martinez, Georgia, near Augusta. Richard H. Goolsby, Sr. is a former federal prosecutor in Augusta who has tried some of the largest, most complex cases in Georgia history. Please also visit our law firm's website: www.goolsbylawfirm.com
or email us at: rgoolsby@goolsbylawfirm.com